United States District Court, N.D. California
KEEWIN L. WALKER, Plaintiff,
M. POPOW, et al., Defendants.
ORDER OF DISMISSAL WITH LEAVE TO AMEND DOCKET NO.
EDWARD, M. CHEN, United States District Judge.
L. Walker, a prisoner at the Pelican Bay State Prison, filed
this pro se civil rights action under 42 U.S.C. § 1983.
His complaint is now before the court for review under 28
U.S.C. § 1915A.
Walker alleges the following in his complaint:
Walker works “with chemicals daily, bio-material
occasionally & blood spills often, ” and therefore
must shower before dinner and wash his clothes daily. Docket
No. 1 at 3. Correctional officer (C/O) Popal intentionally
delayed Mr. Walker’s shower which eventually became
such an issue that supervisors caused a note to be put in the
tower stating that Mr. Walker was to receive his shower
before the evening meal. Sergeant Spencer asked Mr.
Walker’s supervisor if the workers could be released at
3:45 (apparently to make the showering easier) and the
supervisor said it could not be done routinely but would be
done occasionally depending on the workload. The showering
issue was eventually resolved so that Mr. Walker would return
from work, receive his shower and dinner, and be counted
without a disruption to normal programming.
after being made to comply with this set-up, C/O Popal
announced to the prisoners in Mr. Walker’s housing unit
that “their program would be delayed because he had to
shower inmate Walker in 223.” Id. at 4. Mr.
Walker claims that this was done to attempt to get inmates to
harm him. C/O Popal disallowed a shower and evening meal for
Mr. Walker on October 4, 2018, by closing the cell door,
although Mr. Walker was allowed to shower later that night.
C/O Popal yelled that, if Mr. Walker did not return by 3:45
p.m., he would have to wait to shower. Mr. Walker complained
to a supervisor.
sergeant Spencer told Mr. Walker that he did not like being
called a liar and said that he was having Mr. Walker moved to
another block. When Mr. Walker asked why he was being moved,
sergeant Spencer said “‘to get your
shower.’” Id. at 5. Mr. Walker explained
that the problem had been resolved and that all that was
required was to reinstruct C/O Popal to adhere to the program
implemented earlier. Nonetheless, Mr. Walker was moved to
another building. Mr. Walker contends that this was done in
retaliation for Mr. Walker’s efforts to have sergeant
Spencer and C/O Popal “held accountable.”
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). In its review the court must
identify any cognizable claims, and dismiss any claims which
are frivolous, malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. See Id. at
§ 1915A(b). Pro se pleadings must be liberally
construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
Eighth Amendment imposes duties on prison officials to
provide prisoners with the basic necessities of life, such as
food, clothing, shelter, sanitation, medical care, and
personal safety. See Farmer v. Brennan, 511 U.S.
825, 832 (1994). A plaintiff alleging that conditions of
confinement amount to cruel and unusual punishment prohibited
by the Eighth Amendment must satisfy a two-prong test.
Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a
plaintiff must satisfy an objective test showing that
“he is incarcerated under conditions posing a
substantial risk of serious harm.” Farmer, 511
U.S. at 834. In determining whether a deprivation of a basic
necessity is sufficiently serious to satisfy the objective
component of an Eighth Amendment claim, courts consider the
circumstances, nature, and duration of the deprivation.
See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000). Second, the plaintiff must show that the prison
official inflicted the deprivation with a “sufficiently
culpable state of mind, ” that is, with
“deliberate indifference” to the prisoner’s
health or safety. Farmer, 511 U.S. at 834. The deliberate
indifference standard requires that the official know of and
disregard an excessive risk to prisoner health or safety. See
Id. at 837. The official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference. See id.
allegation that Mr. Walker was not allowed to shower before
meals do not state a plausible claim for an Eighth Amendment
violation. The complaint does not adequately plead an
objectively serious condition because Mr. Walker does not
allege on how many occasions he was denied a shower or what
contaminants were actually on him when he was denied a
shower. Without this information, it cannot be determined
whether this was a sporadic problem or a persistent problem,
and whether there actual rather than potential contamination
problem. The complaint also does not adequately plead the
subjective element because no facts are alleged suggesting
that C/O Popal knew of and disregarded an excessive risk to
inmate health or safety when he refused to let Mr. Walker
shower before dinner.
allegation that C/O Popal announced to the housing unit that
the programming was delayed so that Mr. Walker could have his
shower does not state a plausible claim of deliberate
indifference to Mr. Walker’s safety. No facts are
alleged to suggest that prisoners are so inclined toward
violence that a mere announcement of an inconvenience, even
when it is announced that the inconvenience is caused by a
specific prisoner, will cause other prisoners to attack the
prisoner who causes the inconvenience. Cf. Valandingham
v. Bojorquez,866 F.2d 1135, 1138 (9th Cir. 1989)
(deliberately spreading rumor that prisoner is snitch may
state claim for violation of right to be protected from
violence while in state custody). Mr. Walker does not allege